The Judiciary

Federalist 78: Hamilton Selection of judges is same mode as other branches: republican Selection of judges is same mode as other branches: republican Indirect: Pres nominates, Senate approves Indirect: Pres nominates, Senate approves Comparative Judicial Selection (US States) Comparative Judicial Selection (US States) Gubernatorial Appointment Gubernatorial Appointment Legislative Appointment Legislative Appointment Partisan Popular Election Partisan Popular Election Non-Partisan Popular Election Non-Partisan Popular Election Merit Plan Merit Plan

Federalist 78: Hamilton Primary Debate is on Length of Term Primary Debate is on Length of Term “During Good Behavior” – i.e. lifetime tenure “During Good Behavior” – i.e. lifetime tenure Why? Why? Hamilton discusses weakness of Judiciary Hamilton discusses weakness of Judiciary President – military President – military Congress – purse and lawmaking Congress – purse and lawmaking Judiciary – “neither force nor will but merely judgment” Judiciary – “neither force nor will but merely judgment” Judiciary is the weakest of the three branches Judiciary is the weakest of the three branches

Federalist 78: Hamilton Limited constitution requires check on powers of legislature and executive Limited constitution requires check on powers of legislature and executive Need for Judicial Review Need for Judicial Review Ensures that constitutional rights protected Ensures that constitutional rights protected Anti-Federalists argue would place judiciary above other branches Anti-Federalists argue would place judiciary above other branches Hamilton argues that lack of judicial review would place government above the people Hamilton argues that lack of judicial review would place government above the people Foundational vs. statutory law Foundational vs. statutory law Judiciary is an intermediary between people and other institutions Judiciary is an intermediary between people and other institutions Periodic appointments would make judges hostage to the legislature or executive – need lifetime tenure Periodic appointments would make judges hostage to the legislature or executive – need lifetime tenure

Federalist 78: Hamilton Other major reason for lifetime tenure: Other major reason for lifetime tenure: Few will understand law Few will understand law Makes those who do invested in position Makes those who do invested in position

Federalist 79: Hamilton Problem with lifetime tenure – what if judge is incompetent? Problem with lifetime tenure – what if judge is incompetent? No provision to remove for inability No provision to remove for inability Says inability too arbitrary Says inability too arbitrary Judicial pay can be increased but not decreased Judicial pay can be increased but not decreased Necessary for independence Necessary for independence

Judicial Review Three Components of Judicial Review: Three Components of Judicial Review: Powers of the courts to declare national, state and local laws invalid if they violate the Constitution Powers of the courts to declare national, state and local laws invalid if they violate the Constitution Supremacy of national laws or treaties when they conflict with state and local laws Supremacy of national laws or treaties when they conflict with state and local laws Role of the Supreme Court as the final authority on the meaning of the Constitution Role of the Supreme Court as the final authority on the meaning of the Constitution

Judicial Review Applies to other branches and all level of governments Applies to other branches and all level of governments Congress: Congress: U.S. v. Lopez 1995 U.S. v. Lopez 1995 President President 1974 – Nixon White House Tapes – Watergate (executive privilege) 1974 – Nixon White House Tapes – Watergate (executive privilege) States States Brown v. Board of Education (1954) Brown v. Board of Education (1954) Roe v. Wade (1973) – struck down abortion laws in 40 states Roe v. Wade (1973) – struck down abortion laws in 40 states

Structure of the US Court System Article III of Const. only mandates SC – Congress can design rest of system Article III of Const. only mandates SC – Congress can design rest of system 94 U.S. District Courts 94 U.S. District Courts 12 Circuit Courts of Appeals (+ 1 Federal Appellate Court) 12 Circuit Courts of Appeals (+ 1 Federal Appellate Court) DC has a federal court which is acknowledged as the “12 th ” Court of Appeals DC has a federal court which is acknowledged as the “12 th ” Court of Appeals 1 Supreme Court 1 Supreme Court

Supreme Court Changes in # Changes in # Originally 6 Justices Originally 6 Justices 1807 – – – – – – – present: – present: 9 Average Tenure is 15 years Average Tenure is 15 years New judge every 22 months New judge every 22 months

Routes to Supreme Court Original Jurisdiction Original Jurisdiction Appellate Routes – Appellate Routes – Supreme Court has discretion over which cases it wants to hear other than original jurisdiction Supreme Court has discretion over which cases it wants to hear other than original jurisdiction

Case Selection Rule of Four Rule of Four Factors affecting Case Selection Factors affecting Case Selection Legal Legal Lower courts conflict Lower courts conflict Lower courts depart from SC precedent Lower courts depart from SC precedent Topic not yet handled by SC Topic not yet handled by SC Political Political US Solicitor General US Solicitor General Amicus Curiae Briefs – Ashcroft v. ACLU 2003 Amicus Curiae Briefs – Ashcroft v. ACLU 2003Ashcroft v. ACLU 2003Ashcroft v. ACLU 2003 Personal Ideology of Justices Personal Ideology of Justices

Hearing and Deciding the Case Hearing the Case Hearing the Case Written Arguments Written Arguments Oral Arguments Oral Arguments Deciding the Case Deciding the Case The Conference The Conference Opinion Assignment Opinion Assignment Opinion Circulation Opinion Circulation Final Vote Final Vote

Written Opinions Majority Opinion – the “official” opinion of the court – carries precedent Majority Opinion – the “official” opinion of the court – carries precedent Dissenting Opinion – one or more Justices disagree with the legal rationale of the majority Dissenting Opinion – one or more Justices disagree with the legal rationale of the majority Concurring Opinion – agree Concurring Opinion – agree with one of the opinions but for different reasons

Separation of Powers/Checks and Balances Court has a lot of power Court has a lot of power However, not unlimited However, not unlimited Other branches still have their own “checks” on the Court Other branches still have their own “checks” on the Court 1) Alter Constitution 1) Alter Constitution Take away jurisdiction Take away jurisdiction New Constitutional amendments New Constitutional amendments 2) Other branches have ability to “punish” courts 2) Other branches have ability to “punish” courts Hold salaries constant, impeach judges, change size of court, make exceptions to jurisdiction Hold salaries constant, impeach judges, change size of court, make exceptions to jurisdiction 3) Government can refuse to implement decisions 3) Government can refuse to implement decisions courts at mercy of other branches/states courts at mercy of other branches/states